Respondent has filed a petition for rehearing in this case claiming that we have overlooked rules 22 and 23 of the rules of the Brotherhood of Railroad Trainmen, that the record shows that the defendant, Brotherhood of Railroad Trainmen, violated their own rules in not allowing the plaintiff to present his claim as provided by the rules and constitution of the said Brotherhood of Railroad Trainmen.
Sections 68 and 70 are sections of the constitution of the Grand Lodge of the Brotherhood of Railroad Trainmen and §§ 22 and 23 are rules prescribed by the order beginning on page 119 of Exhibit 3.
Section 20, page 130 of the rules, is entitled "Total and Permanent Disability Claims" and is identical with § 68 of the constitution relating to total and permanent disability claims. Section 22 of the rules entitled "Benevolent Claims" is the same as § 70 of the constitution. It provides that: "All claims for disability not coming within the provisions of Rule No. 20 shall be held to be addressed to the benevolence of the Brotherhood, and shall in no case be made the basis of any legal liability onthe part of the Brotherhood. Every such claim shall be referredto the Individual Reserve Board, who shall prescribe thecharacter and decide as to the sufficiency of the proofs to befurnished by the claimant, and if approved by said board, the claimant shall be paid the amount due on the certificate held by him, and such payment shall be considered a surrender and cancellation of such certificate, provided, *Page 458 that the approval of such board shall be required as a conditionprecedent to the right of any such claimant to benefitshereunder, and it is agreed that this rule may be pleaded in barof any suit or action at law, or in equity, which may becommenced in any court to enforce the payment of any such claims.The decision of the Individual Reserve Board shall be final."
This rule is in harmony with § 70 which provides specifically that a benevolent claim shall in no case be made the basis of any legal liability. The approval of the board shall be required as a condition precedent and it further provides that the rule may be pleaded in bar of any suit or action at law, or in equity and the decision of the board is final.
Rule 23. "A member desiring to present a claim under Rule No. 22 shall petition his lodge in writing upon the form provided by the General Secretary and Treasurer; said form must be properly executed by the claimant, and a regular practicing physician and surgeon, showing the condition of the member and the basis of his claim. If approved by the lodge, the secretary shall forthwith forward the form with notice of such approval to the General Secretary and Treasurer, who will at once forward to the lodge necessary blanks and instructions for presenting a claim." This section is substantially the same as § 71 of the constitution, so far as presenting the claim and the furnishing of the blanks, they are identical.
All there is in the record about a claim is in the testimony of Donald Booth, secretary and treasurer of the local organization at Jamestown, and certain letters from the defendant, as follows: "I ask you to state, Mr. Booth, whether prior to this, the receipt of Exhibits (5) and (6), you had made a requisition as head and representative of the local organization, for permission to file proof of claim for Mr. Huffman and Mr. Wasson. A. Yes." Exhibit 4 is addressed to
"Mr. D.G. Booth, Treas., "529 Second Avenue, N., "Jamestown, N.D.
"Dear Sir and Brother:
"This will acknowledge receipt of your favor of the 11, 1933, requesting that we furnish you proper forms for filing benevolent claims *Page 459 on behalf of Brother Howard Wasson and Brother T.J. Huffman of our lodge.
"In reply desire to state that the Individual Reserve Bd. does not find it consistent to furnish blanks for filing claims on behalf of these two members, due to the fact that payment oftheir claims was recently refused by the Board of Insurance. (Italics are ours.) However, if their conditions have grown materially worse since they were last examined, if they will secure from their attending physicians, full and complete statements of their present physical conditions and forward same to this office, when received, I will be pleased to refer same to the Beneficiary Board for their consideration as to whether or not in the opinion of the Board their physical conditions are such as would warrant them in permitting these two Brothers tofile new claims." (Italics are ours.)
From this letter it appears that their claims had been filed and were rejected and no further consideration would be given unless a different condition was shown.
On August 11, 1933, the Brotherhood again wrote to Mr. D.G. Booth as follows:
"This will acknowledge receipt of your communication enclosing a doctor's statement with reference to Brother Howard Wasson of your lodge and after giving consideration to this statement and all evidence to date, the Beneficiary Board are of the opinion that there is no disability other than was previously considered in his former disapproval claim and they do not find it consistent to take further action at this time."
Again on the same date the defendant wrote to Mr. Booth as follows:
"We are in receipt of a statement signed by Dr. Arthur W. Ide with reference to the physical condition of Brother Thomas J. Huffman of your lodge and after giving consideration to this statement and all evidence in the claim file, the Beneficiary Board are of the opinion that Brother Huffman's physical condition is not such as to warrant them in permitting him to file another claim at this time."
These letters, which were offered by the plaintiff, do not bear out the claim that the Board refused to allow the plaintiff to present his claim but on the contrary they show that prior to July, 1933, the claim had been submitted and had been passed upon by the Board and disallowed. *Page 460 Rule 22 gives the Board authority to prescribe the character and decide as to the sufficiency of the proofs and on three different occasions the Board decided that the proof submitted was insufficient. The decision of the Board, under rule 22, is final.
The claim is also made that chapter 23 of the Civil Code, §§ 5059, to 5090, Compiled Laws 1913, inclusive, does not apply and that the law applicable is found in chapter 168 of the Laws of 1931. Chapter 168 of the Laws of 1931 is entitled "An Act to amend and re-enact § 5088 of the Compiled Laws of the State of North Dakota for the year 1913, defining exemptions of certain societies." This amendment, chapter 168 of the Laws of 1931, became § 5088 of article 6 of chapter 23 of the Civil Code. It does not change the law in any way, except as to societies which are exempt from the operation of the law.
That part of § 5088, before the amendment, read as follows: "Or societies which limit their membership to any one hazardous occupation, or to similar societies which do not issue insurance certificates." This language was amended to read as follows: "Or societies which admit to membership only persons engaged in one or more hazardous occupations in the same or similar lines of business, nor to similar societies which do not issue insurance certificates." Before the amendment the exemption applied to societies where the membership was limited to those who were engaged in one hazardous occupation; while under the amendment the exemption applies to societies whose members are engaged in one or more hazardous occupations in the same or similar lines of business. This is a general provision and there is another provision which exempts an association of local lodges of a society doing business in the state which provides death benefits not exceeding $500 to any one person and disability benefits not exceeding $300 in any one year to any one person. The defendant is an association of local lodges which provides a death benefit of $2000 and therefore is not exempt, as such lodges are only exempt from the operation of the law when the death benefit does not exceed $500 to any one person and the disability benefit does not exceed $300.
It is claimed "that the amendment in 1931 was made for the sole purpose of making sure that this particular organization (Brotherhood of R. Trainmen) should not be subject to or governed by any local law and that at the instigation of this Brotherhood had this amended *Page 461 act passed." The statute was referred to in our opinion for the purpose of showing that there was nothing in the law in conflict with the constitution and by-laws of the order and as a matter of course, if the order is exempt from the provisions of the law, as claimed, then the constitution and by-laws of the order prevail.
The petition for rehearing is denied.
BURR, NUESSLE, MORRIS and CHRISTIANSON, JJ., concur.